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What the
small-time sellers of seed need to know before they sell seed in
California
by John Heaton, Senior Agricultural Biologist,
California Department of Food
and Agriculture,
Nursery, Seed and Cotton Program |
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 Many
people are surprised to learn that their “hobby” of producing
seed in their backyard and selling it on the internet, may
actually be placing them in violation of federal and state laws.
For example, the California Seed Law requires persons selling
agricultural and vegetable seed to obtain authorization from the
Secretary of Agriculture before they sell such seed, regardless
of the amount [F&C Division 18, Chapter 2 Section 52351].
The Food and Agriculture code defines “sell” as offering for
sale, exposing for sale, possessing for sale, exchanging,
bartering, or trading seed. Persons selling agricultural or
vegetable seed in California without authorization are in
violation of Section 52351 and are subject to enforcement
actions by the California Department of Food and Agriculture.
There is historical precedent for concern about the identity and
quality of seed offered for sale. For this reason the
legislature and the seed industry worked together to develop the
seed law. Their objective is to provide for an orderly market of
seed that protects the consumer while also preserving the
reputation of the seed industry.
State and federal seed laws have specific rules for the
labeling of seeds to prevent the sale and distribution of
seed that are different than what is represented on the label.
It is detrimental to the consumer and the industry if poor
quality or even non-viable seeds are sold at any level. The Seed
Services Program in the California Department of Food and
Agriculture routinely takes enforcement action on companies or
individuals that offer seed for sale without authorization, or
who deliver seed of lesser quality than is represented on their
label.
In addition to violating state seed law, individuals who
propagate seeds in their backyard and offer such seeds for sale,
are often surprised to learn that they may be violating the
intellectual property rights of the plant breeder that
originally developed the variety. Furthermore, if the
backyard producer renames any harvested seed and sells it into
another state, he or she will be in violation of the Federal
Seed Act, which prohibits the sale of seed under a variety name
that is different than the name assigned when it was originally
commercialized. In other words, it’s illegal to rename someone's
variety and represent it as your own.
People or organizations selling small packets of protected
varieties to garden clubs and other limited markets, often
believe that the volume of seed they sell is small and the
impact to the developer is insignificant. This is generally not
the case. Propagating and selling a protected variety without
permission of the PVP Certificate holder is a violation of the
Plant Variety Protection Act and it can cause significant
direct and indirect financial loss to plant breeders or firms
that developed the variety. Plant breeders occasionally contact
seed control officials and complain that individuals are selling
lesser quality seeds of their protected varieties on the
internet. As a result of the poor quality seeds, consumers
frequently post unsatisfactory remarks about the performance of
that seed in various chat rooms. Such postings harm the
reputation and marketability of a protected variety that a plant
breeder may have spent years developing. This problem is
especially obvious when the original variety is sold as an F1
hybrid plant and the consumer harvests the F2 seeds to offer
them for sale under the same variety name as the F1 seed. The
consumers often do not know about genetic segregation and do not
understand that the F2 seeds they are offering for sale under
the same variety name are entirely different than the F1 seed
developed and marketed by the plant breeder.
All of these laws do not mean that a consumer cannot save their
seed. Gardeners are welcome to retain seed of non-patented
varieties they purchase, including varieties protected by PVP,
and they can legally plant the harvested seed for their own use
on their own property. Once they decide to sell seed however,
they are no longer hobbyists but are now part of the seed
industry, regardless of how much they sell. They must abide by
all of the seed laws, including the Federal Seed Act, state seed
laws and the Plant Variety Protection Act. In addition, if
they wish to sell seed as organic, they should be aware of the
Organic Foods Production Act of 1990, which required USDA to
develop national standards for organically produced agricultural
products. In short, seeds that are sold, labeled, or represented
as organic must be produced and processed in accordance with the
National Organic Program (NOP) standards. A civil penalty of up
to $11,000 can be levied on any person who knowingly sells or
labels as organic, a product that is not produced and handled in
accordance with the National Organic Program’s regulations.
It is only through an orderly market that consumers and plant
breeders are protected. Strict enforcement of the California
Seed Law ensures that all sellers of seed properly label their
seeds for consumers and that intellectual property rights are
observed so new seed varieties get developed. The ultimate goal
of the California Seed Laws is to guarantee that Californians
have the best possible seed to plant.
A list of firms authorized to sell agricultural and vegetable
seeds in California can be obtained at:
http://www.cdfa.ca.gov/phpps/PE/Nursery/pdfs/Dir_SeedLabelers.pdf
A copy of the California Seed Law and an Application for
Authorization to sell agricultural or vegetable seed in
California can be found at the CDFA Seed Services Program’s web
page:
http://www.cdfa.ca.gov/phpps/PE/Nursery/Seed.html
Link for the
USDA National Organic Program
John Heaton
Senior Agricultural Biologist
Seed Services Program
California Department of Food
and Agriculture
1220 N. Street Room A-372
Sacramento, CA 95814
(916) 654-0435 |
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April 2008 |
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